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Showing contexts for: constructive desertion in Lini Mohan John vs Mohan John on 13 March, 2001Matching Fragments
5. The learned counsel for the petitioner invited my attention to the decision reported in A v. B (1996)1 Ker LT 275 : (1996 AIHC 1727) wherein it is stated that the legal concept of cruelty which is not defined by statute, is generally described as conduct of such character as to have caused danger to life, limb or health or as to give rise to a reasonable apprehension of such danger, He also relies on the decision in Prlncy v. Varkey (2000) 1 Ker LT 756. Regarding the nature of cruelty for the purpose of divorce the court held that the question of cruelty is to be Judged on the basis of evidence on record and circumstances of the case. Whether a spouse is guilty of cruelty is essentially a question of fact and the Court must consider the aforesaid matters in view of physical condition, custom and manners of the parties. To constitute cruelty, physical violence is not absolutely necessary. Inflicting mental agony is also cruelty. Mental cruelty can consist of verbal abuses and insults by using filthy, abusive language leading to constant marital discord. It may cause even more serious injury than physical harm. Here in this case, the petitioner was taken to Dammam where the respondent was working. Ext. P2 letter which was sent by her in 1995 goes to show that on the very day when they landed at Saudi Arabia the respondent left for gambling and came back only early in the night, viz. at 3 O'clock. This letter also goes to show that he had borrowed money from his friends and others. The mental agony of the petitioner is evident from Ext. P2 letter. Her anxiety was how long she has to suffer the cruelty of the husband. She states that her husband used to tell lies to his friends and other regarding the misappropriation of money. She also states that she is scared of the situation in Dammam. It is the human right of a person to live happily and to develop his personality. He used to lock the door from outside when he goes out and the petitioner will be alone in the house. There was no air conditioner or telephone facility. All along she has left alone till the husband comes back early in the next morning. In addition to this the creditors used to knock at the door demanding money due from her husband. The husband asked her to bring money from her father. He had also threatened her father saying that unless the money is paid the petitioner and the child will not be sent back to Kerala. Fearing that something untoward will happen to the petitioner and her child her father sent money. In spite of that he had borrowed money from the creditors and misappropriated money from the company. He has not paid the rent of the quarters and also the electricity charges. In such a situation one can imaigine the mental agoney of a wife who has no source of income other than the salary of her husband for her livelihood. This itself is sufficient to show that the respondent has treated the wife with cruelty and made her life miserable. The love towards her has been lost for ever. Therefore, in order to save the petitioner from the agony of mind and from the matrimonial discord a divorce is a must. It is also evident that the petitioner and her daughter were sent back to Kerala in July, 1996. Thereafter, there was no contact between the petitioner and the respondent. The respondent has not even cared to look after the child and to provide maintenance. The petitioner has proved that after 1996 there was no resumption of cohabitation. She was forced to leave Dammam under the circumstances mentioned above. Therefore, I can find that she was compelled to leave Dammam because of the cruel acts of the respondent. Therefore, there is constructive desertion on the part of the respondent, for the last four years they have been living separately. Thus he has" neglected and deserted the petitioner and her child. Section 10 of the Indian Divorce Act does not help the petitioner to file a petition for divorce on the ground of cruelty and desertion, but in view of the Full Bench decision in Mary Sonia Zacharia v. Union of India (1995)1 Ker LT 644 the petitioner is entitled to get a decree of divorce on the ground of cruelty and desertion. The petitioner has proved by the evidence of P.Ws. 1 and 2 and also by the documentary evidence Exts. P1 to P5 that she was treated with cruelty and was deserted by her husband for more than a period of two years. Therefore, the petitioner is entitled to get a decree as prayed for.